Though widely considered to be a likely supporter of the Communications Act Title II net neutrality approach FCC Chairman Tom Wheeler is expected to unveil later this week, Commissioner Mignon Clyburn said in an interview that she wants to make sure “everyone is able to point to something in the order that benefits them.” By that, Clyburn, who acknowledged she backed Title II in the 2010 net neutrality order, said she doesn’t want only the “well-heeled” to benefit, and wants the commission to maintain a regulatory backstop if needed. She also doesn't want to damage the continued deployment of broadband, Clyburn told us Friday.
The FCC raised to 25 Mbps download and 3 Mbps upload the standard for determining whether broadband is being sufficiently deployed around the country Thursday, over objections of Republican commissioners and ISPs. The 3-2 vote had been expected (see 1501280056). The commission accepted the conclusion in the agency’s broadband progress report that, under the new standard, broadband is not being deployed in a reasonable or timely fashion. That finding requires the agency to take “immediate” steps to improve deployment under the Telecommunications Act's Section 706. A separate party-line 3-2 vote approved a notice of inquiry seeking ideas on how to improve broadband deployment.
Expected FCC approval Thursday of a higher speed standard for broadband was portrayed by cable and telco ISPs as a power grab. But public interest groups were hailing the likely passage of the 25 Mbps download/3 Mbps upload standard as an attempt to more accurately reflect expectations around broadband speeds that could also push the cable industry to reach the 100 Mbps download speeds envisioned in the FCC National Broadband Plan. The vote, approving the higher standard along with the issuance of a notice of inquiry on how to promote broadband deployment, is widely expected to be along party lines.
Senate Commerce Committee Chairman John Thune, R-S.D., may bring back congressional reauthorization of the FCC, he said Wednesday at the American Enterprise Institute headquarters in Washington. “When I talk about reauthorizing the FCC, that hasn’t been done since 1990,” Thune said, expressing a desire to “see if we can get Congress back in the habit of regularly reauthorizing the commission.”
The FCC plans to fine Advanced Tel of Simi Valley, California, $1.6 million for failing to make required payments to USF and other federal telecom programs, the Enforcement Bureau said in a news release Monday. “All phone companies are required to participate in universal access programs so that consumers everywhere have access to critical telecommunications services,” Enforcement Bureau Chief Travis LeBlanc said. “Service providers who flagrantly avoid these responsibilities damage these programs and the public interest, and we demonstrate today that we will hold them accountable.” The carrier did not make payments to USF and the Telecommunications Relay Service Fund, as well as the Local Number Portability Administration, and federal regulatory fees, the release said. Advanced Tel did not immediately comment.
The FCC violated the Administrative Procedure Act in refusing to reconsider how the agency sets its rate floor to determine some types of USF support, said NTCA and rural carriers in an application for review. The agency declined comment on the application, filed Wednesday by the NTCA, Eastern Rural Telecom Association, National Exchange Carrier Association and WTA.
Commissioner Mike O’Rielly urged the FCC to “take a step back” from its work on new net neutrality rules because “Congress is actively working” on legislation that would address the issue. “There is absolutely no reason why the commission needs to rush” to write new net neutrality rules, O’Rielly said Wednesday during a speech at the American Enterprise Institute. “There is still no evidence of a market failure or harm to consumers. There are no pending claims of potential net neutrality violations.”
A partisan rift persisted and clouded prospects for net neutrality legislation Wednesday, which GOP lawmakers in both chambers began circulating in draft form last week. GOP leaders of the Commerce committees held two hearings on legislation they call a bipartisan compromise, spurring plentiful outcry from Democrats. The draft text would codify several net neutrality protections while limiting FCC authority under Communications Act Title II and Telecom Act Section 706. No Democrats have lent any backing, and many observers have guessed a White House veto of a partisan bill is likely.
If the FCC takes a Communications Act Title II net neutrality approach and opts not to forbear from Sections 201 and 202, it should, at most, rely on the sections only to provide additional authority for transparency, no-blocking, and antidiscrimination rules, CEO Michael Powell and other NCTA officials told agency General Counsel Jonathan Sallet, Philip Verveer, senior counselor to Chairman Tom Wheeler, and other officials Monday, said an ex parte filing posted Wednesday in docket 14-28. Applying Sections 201 and 202 beyond what’s needed to enforce net neutrality rules “would expose broadband providers to the investment-reducing and innovation-chilling risks that have sparked vehement opposition to reclassification,” NCTA said. It’s “particularly important to forbear from enforcing Section 201(b),” the filing said, because “the directive to ensure that all ‘charges’ and ‘practices’ are ‘just and reasonable’ would subject every aspect of a broadband provider’s business to regulatory second guessing and micromanagement.” President Barack Obama’s call, while endorsing reclassification, to forbear from rate regulation “cannot be accomplished without forbearing from Section 201(b) -- as that provision is the primary source of statutory authority for the FCC to engage in rate regulation,” NCTA said. The association stressed it continues to oppose reclassification, and wants forbearance from all requirements if the commission adopts the Title II approach. Forbearance also should be done concurrent with any approval of reclassification, NCTA said. Calls by some to suspend sections of Title II, while the commission decides whether to forbear from them, “would deprive industry participants of much-needed regulatory certainty,” NCTA said. Also attending the meetings were James Assey, executive vice president; Rick Chessen, senior vice president-law and regulatory policy; Steven Morris, associate general counsel; Latham Watkins’ Matthew Murchison and Matthew Brill; and members of the commission’s general counsel’s office and the Wireline and Wireless bureaus. NTCA CEO Shirley Bloomfield urged Sallet Monday not to forbear from Section 254 because it could block the agency’s ability to require broadband customers to begin contributing to the USF (see 1501120039), said an ex parte filing. Brendan Kasper, Vonage senior regulatory counsel, and Morgan Lewis’ Joshua Bobeck and William Wilhelm urged an aide to Commissioner Mignon Clyburn Monday not to forbear from Sections 201, 202 and 208, the company’s ex parte filing said. Vonage backed Google’s position to not forbear from Section 224, which gives broadband providers access to utility poles and other infrastructure needed for deployment (see 1412310041).
FCC Chairman Tom Wheeler may be moving toward basing net neutrality rules on Title II (see 1501070054), but how he goes about it has become intertwined with another controversial issue -- whether to require broadband customers to begin paying into the USF. If the FCC approves reclassification, and forbearance from Section 254, the agency could block its own ability to require broadband to contribute to the fund, an NTCA official told us. The group made the case to the agency last week. ITTA, which like NTCA has called for requiring broadband providers to begin contributing to the fund, also opposes forbearing from the section, said ITTA President Genny Morelli in an interview.